Why You Should Make A Will When Divorcing

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If you and your spouse decide to separate and/or commence divorce proceedings, it is always advisable to consider making a Will.

If you do not already have a Will then, under the Intestacy Rules, your spouse is likely to be the main (and in a lot of cases the only) beneficiary of your estate.

Also, if you have made a Will, then your spouse will continue to be entitled to anything that you have left him or her in your Will until decree absolute.

Following decree absolute, because you are no longer married, your spouse is no longer entitled under the Intestacy Rules and any gifts in a Will are treated as if the spouse has predeceased, so he or she does not inherit.

It is important to appreciate that in a lot of cases decree absolute will not be applied for until financial matters have been resolved and you should therefore seriously consider whether you still want your spouse to inherit in the event of your death.

A lot of people make a Will instead leaving their estate to other relatives, including children or parents.

If you do make a Will then you must appreciate that some assets in joint names will not automatically pass in accordance with your Will. This includes, in particular, property that is owned as joint tenants (a lot of married couples own as joint tenants), and joint accounts.

These will pass under what is called the doctrine of survivorship so that if one joint owner dies the other automatically inherits the whole property or all the proceeds of the bank account, even if there is a Will leaving all of the estate to someone else.

It is therefore sensible to take legal advice if you are considering making a Will to ensure that any jointly owned assets are included.

You must also appreciate that the other spouse may become suspicious that you are making a new Will because, for example, if you wish to leave your share of property that is owned as joint tenants, you do have to formally serve notice of severance on the other owner.

The likely response is obviously for your spouse to make a Will disinheriting you, so you do need to think carefully about who is likely to die first.

I had one very unfortunate case where the wife made a Will because she was diagnosed with cancer and my client, on being notified, made a Will himself and very sadly had a fatal heart attack a couple of weeks later.

The wife was, I am told, very annoyed that her actions had led to her jointly owning property with her in-laws, rather than owning it outright herself! When making a Will it is also important to consider when beneficiaries should inherit.

Traditionally, a lot of people left their estate to children when they reached the age of 18, but increasingly it is felt that this is perhaps too young and that getting such a large sum of money at a point where statistically it is unlikely you will have the responsibilities of a family or property ownership is not a good move.

Finally, if you are making a Will, your lawyer should advise you to consider appointing trustees and guardians if you have children.

You will need to think about what sort of powers you want the trustees to have to advance money for the children’s benefit, e.g. to use for education or to purchase a car before they are entitled to receive their legacy.

With guardianship it is important to appreciate that the appointment does not actually take effect unless both parents die and in some cases it is sensible to also have a letter setting out your wishes, e.g. who you would like the children to live with in the event of your death.

Such documents are not actually binding because courts have the power to order what is best for the children, but it can be useful for a judge to know what a deceased parent had felt was best.

So to conclude, if you are separating or divorcing it is sensible to make a Will and at the same time a lot of people consider whether they want to update nominations in respect of life assurance and pension death in service benefits.

Written by Kirstie Law Solicitor, Collaborative Lawyer and Mediator at Thomson Snell & Passmore. www.ts-p.co.uk

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Kate Daly is co-founder of amicable and host of the The Divorce Podcast. Kate created The Divorce Podcast to discuss and demystify divorce, separation and co-parenting in the UK. In each episode, Kate is joined by experts in their field to explore divorce and separation from every angle.